Amicus Curiae Brief — Derick Irisha Brown, Petitioner v. United States

No. 25-1342

IN THE

Supreme Court of the United States

___________

DERICK IRISHA BROWN, PETITIONER

v.

UNITED STATES

___________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

___________

BRIEF OF PROFESSOR RANDY E. BARNETT

AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

___________

Peter A. Bruland

Jacob Steinberg-Otter

Seumas G. Macneil

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

Collin P. Wedel

Counsel of Record

SIDLEY AUSTIN LLP

350 South Grand Avenue

Los Angeles, CA 90071

(213) 896-6000

cwedel@sidley.com

Robert D. Capodilupo

SIDLEY AUSTIN LLP

60 State Street

36th Floor

Boston, MA 02109

(617) 223-0300

Counsel for Amicus Curiae

July 2, 2026

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

ii

INTERESTS OF AMICUS CURIAE ....................

1

SUMMARY OF ARGUMENT ..............................

1

ARGUMENT .........................................................

5

I. THE CONSTITUTION LIMITS CONGRESS’S

POWER

TO

REGULATE

PURELY LOCAL, NONECONOMIC ACTIVITY ..........................................................

5

A. The Necessary and Proper and Commerce Clauses reach intrastate activities

only to effectuate regulation of interstate

exchange or trade. ....................................

5

B. Commerce Clause precedents do not permit Congress to regulate intrastate activity merely because an automobile is

used...........................................................

11

II. THE ELEVENTH CIRCUIT’S RULE THAT

AUTOMOBILES ARE PER SE INSTRUMENTALITIES IMPERMISSIBLY EXTENDS FEDERAL POWER .........................

19

CONCLUSION .....................................................

23

ii

TABLE OF AUTHORITIES

Page

CASES

Caminetti v. United States,

242 U.S. 470 (1917) ...................................

12

Chisholm v. Georgia,

2 U.S. (2 Dall.) 419 (1793) (Iredell, J.) .....

1

Flowers Foods, Inc. v. Brock,

146 S. Ct. 1358 (2026) ...............................

16

Gibbons v. Ogden,

22 U.S. 1 (1824) ............................. 5, 10, 20, 21

Gonzales v. Raich,

545 U.S. 1 (2005) ......................................

14

Hester v. United States,

586 U.S. 1104 ............................................

13

Japan Line, Ltd. v. Los Angeles County,

441 U.S. 434 (1979) .................................. 12, 20

Kelo v. City of New London,

545 U.S. 469 (2005) ...................................

13

Kinsella v. United States ex rel. Singleton,

361 U.S. 234 (1960) ...................................

5

Landor v. La. Dep’t of Corr. & Pub. Safety,

608 U.S. — , 2026 WL 1791277 (June 23,

2026) .......................................................... 2, 6

Martin v. Hunter’s Lessee,

14 U.S. (1 Wheat.) 304 (1816) ...................

6

McCulloch v. Maryland,

17 U.S. (4 Wheat) 316 (1819) .................... 7, 10

NFIB v. Sebelius,

567 U.S. 519 (2012) ...................................

2

NLRB v. Jones & Laughlin Steel Corp.,

301 U.S. 1 (1937) .......................................

17

Overstreet v. N. Shore Corp.,

318 U.S. 125 (1943) ...................................

15

ii

iii

TABLE OF AUTHORITIES—continued

Page

Pensacola Tel. Co. v. W. Union Tel. Co.,

96 U.S. 1 (1877) .........................................

15

Perez v. United States,

402 U.S. 146 (1971) ....................... 12, 14, 16, 20

Pierce County v. Guillen,

537 U.S. 129 (2003) ...................................

12

Printz v. United States,

521 U.S. 898 (1997) ...................................

6

S. Ry. Co. v. United States,

222 U.S. 20 (1911) .....................................

18

Taylor v. United States,

579 U.S. 301 (2016) ...................................

11

The Daniel Ball,

77 U.S. (10 Wall.) 557 (1870) ....................

15

The Emps.’ Liab. Cases,

207 U.S. 463 (1908) ...................................

14

The License Tax Cases,

72 U.S. (5 Wall.) 472 (1867) ......................

10

The Second Emps.’ Liab. Cases,

223 U.S. 1 (1912) .......................................

12

The Shreveport Rate Cases,

243 U.S. 342 (1912) .................................. 12, 15

United States v. Bishop,

66 F.3d 569 (3d Cir. 1995) ........................

21

United States v. Bryan,

159 F.4th 1274 (11th Cir. 2025) ............... 2, 19

United States v. Cobb,

144 F.3d 319 (4th Cir. 1998) .....................

21

United States v. Hemani,

608 U.S. — , 2026 WL 1751710 (June 18,

2026) .......................................................... 7, 14

United States v. Lopez,

514 U.S. 549 (1995) ............ 7, 11, 12, 17, 18, 20

iv

TABLE OF AUTHORITIES—continued

Page

United States v. Morrison,

529 U.S. 598 (2000) ....................... 11, 17, 18, 21

United States v. Oliver,

60 F.3d 547 (9th Cir. 1995) .......................

21

United States v. Protho,

41 F.4th 812 (7th Cir. 2022) .....................

21

United States v. Rahimi,

602 U.S. 680 (2024) ...................................

12

United States v. Windham,

53 F.4th 1006 (6th Cir. 2022) ...................

21

Vidal v. Elster,

602 U.S. 289 (2024) ...................................

11

Zivotovsky ex rel. Zivotovsky v. Kerry,

576 U.S. 1 (2015) .......................................

6

CONSTITUTION AND STATUTES

18 U.S.C. § 32(a)(1) ......................................

U.S. Const. art. I, § 8, cl. 18 .........................

16

22

SCHOLARLY AUTHORITIES

Gary Lawson & Patricia B. Granger, The

“Proper” Scope of Federal Power: A

Jurisdictional Interpretation of the

Sweeping Clause, 43 Duke L.J. 267

(1993) ......................................................... 5, 6

Randy E. Barnett, Interpretation and

Construction, 34 Harv. J.L. & Pub. Pol’y

65 (2011) ....................................................

11

Randy E. Barnett, Jack Balkin’s

Interaction Theory of “Commerce”, 2012

U. Ill. L. Rev. 623 (2012) ................ 8, 10, 12, 13

Randy E. Barnett, Necessary and Proper,

44 UCLA L. Rev. 745 (1997) ..................... 6, 7

v

TABLE OF AUTHORITIES—continued

Page

Randy E. Barnett, New Evidence of the

Original Meaning of the Commerce

Clause, 55 U. Ark. L. Rev. 847 (2003) ......

9

Randy E. Barnett, The Original Meaning of

the Commerce Clause, 68 U. Chi. L. Rev.

101 (2001) .................................................. 9, 19

Stephen E. Sachs, Originalism: Standard

and Procedure, 135 Harv. L. Rev. 777

(2022) .........................................................

11

OTHER AUTHORITIES

Alexander Hamilton, Final Version of an

Opinion on the Constitutionality of an Act

to Establish a Bank [23 February 1791],

in 8 The Papers of Alexander Hamilton

97 (Harold C. Syrett ed., 1965) .................

7

James Madison, Notes of Debates in the

Federal Convention of 1787 (Ohio Univ.

Press 1966) ................................................

8

Nathan Bailey, An Universal Etymological

English Dictionary (26th ed. 1789) ..........

8

Noah Webster, An American Dictionary of

the English Language (1828) ....................

13

1 Samuel Johnson, A Dictionary of the

English Language (6th ed. 1785).............. 8, 13

2 The Debates in the Several State

Conventions on the Adoption of the

Federal Constitution as Recognized by the

General Convention at Philadelphia in

1787 (Jonathan Elliot ed., 2d ed. 1836)....

9

The Federalist No. 11 (Alexander

Hamilton) (Clinton Rossiter ed., 1961) ....

8

The Federalist No. 23 (Alexander

Hamilton) (Clinton Rossiter ed., 1961) ....

9

vi

TABLE OF AUTHORITIES—continued

The Federalist No. 35 (Alexander

Hamilton) (Clinton Rossiter ed., 1961) ....

The Federalist No. 42 (James Madison)

(Clinton Rossiter ed., 1961) ......................

The Federalist No. 45 (James Madison)

(Clinton Rossiter ed., 1961) ......................

Thomas Sheridan, A Complete Dictionary

of the English Language (6th ed. 1796)....

Page

9

9

2, 5

8

INTERESTS OF AMICUS CURIAE1

Professor Randy E. Barnett is the Patrick Hotung

Professor of Constitutional Law at the Georgetown

University Law Center and the Founder and Faculty

Director of the Georgetown Center for the Constitution. He is a leading scholar of originalism, constitutional structure, and the original meaning of the Commerce and Necessary and Proper Clauses.

Professor Barnett has a substantial interest in ensuring that this Court’s jurisprudence on the Necessary and Proper and Commerce Clauses remains faithful to the Constitution’s original public meaning and

to the structural limits that preserve the distinction

between national and local authority. He submits this

brief to explain why this Court should grant certiorari

to make clear that the original meaning of the Clauses,

as implemented by this Court’s precedential doctrines,

requires a concrete nexus between the use of an instrumentality and the regulation of interstate trade or

transportation.

SUMMARY OF ARGUMENT

At the heart of our Constitution is the principle

that the “United States have no claim to any authority

but such as the States have surrendered to them.”

Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 435 (1793)

(Iredell, J.), superseded on other grounds by constitutional amendment, U.S. Const. amend. XI. That basic

proposition is as old as the Constitution itself, see The

1 Pursuant to Supreme Court Rule 37.6, counsel for amicus curiae states that no counsel for a party authored this brief in whole

or in part, and no person or entity other than amicus curiae or his

counsel made a monetary contribution to this brief’s preparation

or submission. All parties have received timely notice of the filing

of this brief.

2

Federalist No. 45, at 292 (James Madison) (Clinton

Rossiter ed., 1961) (The powers “delegated by the …

Constitution to the federal government are few and defined.”), and as recent as this Court’s decision in NFIB

v. Sebelius, 567 U.S. 519 (2012). Under its Commerce

Clause power, Congress may make laws for the regulation of interstate commerce, and this power extends

to the regulation of some intrastate activities when it

is both necessary and proper to carrying into execution

Congress’s power over “Commerce … among the several States.” Congress many not regulate whatever activity it deems sufficiently serious to federalize. There

is no National Problems Power in the Constitution.

As the Court very recently reaffirmed, the Necessary and Proper Clause “authorizes Congress to employ ‘necessary and proper’ means for ‘carrying into

Execution’ its other enumerated powers. Put another

way, the Clause allows Congress to enact laws ‘incidental to those powers which are expressly given.’”

Landor v. La. Dep’t of Corr. & Pub. Safety, 608 U.S.

— , 2026 WL 1791277, at *9 (June 23, 2026) (Gorsuch,

J.) (first quoting U.S. Const. art. I, § 8, cl. 18; then

quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.)

316, 411 (1819)). As in Landor, the question presented

here is whether a law “is a necessary and proper incident to Congress’s constitutionally enumerated power

to” regulate commerce among the several states. Id.

The decision in Landor underscores importance of

this constitutional limit here. Relying on circuit precedent, the Eleventh Circuit held below that an automobile is a per se instrumentality of interstate commerce

and thus subject to congressional regulation even if its

use is purely intrastate and noneconomic. See United

States v. Brown, No. 23-10870, 2025 WL 3771990, at

*2 (11th Cir. Dec. 31, 2025); United States v. Bryan,

3

159 F.4th 1274, 1295–96 (11th Cir. 2025). On that

view, the government may convict under 18 U.S.C.

§ 1201(a)(1)—and the Article I inquiry is satisfied—so

long as the government can prove that a defendant

used a car in committing a kidnapping. The Eleventh

Circuit’s rule thus converts one of the most common—

and local—objects of everyday life into an all-purpose

jurisdictional hook. That is not a faithful implementation of the Commerce power. It is an end-run around

its limits.

The original public meaning of the Necessary and

Proper and Commerce Clauses doesn’t permit that result. At the Founding, “necessary and proper” was understood to limit Congress to means incidental to an

enumerated power and genuinely directed toward carrying that power into execution. And “commerce” was

understood to encompass trade, exchange, intercourse,

and transportation; it did not include every local activity involving an object that could, in some other circumstance, move across state lines. Together, the

Clauses empower Congress to regulate intrastate activities only when doing so is a necessary and proper

means of regulating interstate trade, exchange, intercourse, or transportation.

This Court’s precedents implementing the constitutional text confirm that understanding. They do not

treat instrumentality status as a categorical label that

attaches to an object for all purposes and at all times

simply because the object can be or often is used in interstate commerce. Rather, properly understood, they

require a concrete nexus between the regulated use of

the particular object at issue and the regulation of interstate commerce. And they do not permit Congress

to regulate an object involved in purely local,

4

noneconomic activity when unnecessary to a broader

regulation of interstate commerce.

Both these limitations are essential. Without them,

Congress’s authority over instrumentalities would collapse the distinction between what is national and

what is local, effectively supplying Congress with a

general police power every time a local act involves any

number of commonplace objects capable of interstate

transit.

The Eleventh Circuit’s rule cannot be squared with

these limitations and must be corrected. If every automobile is always an instrumentality of interstate commerce, then Congress may regulate virtually every local use of every car—from school drop-offs, to neighborhood errands, to ordinary street crimes—without

showing that the use at issue bears any real connection to interstate trade, exchange, intercourse or

transportation.

What’s more, the problem is not confined to the

Eleventh Circuit; several other circuits have treated

automobiles as per se instrumentalities too. This

Court should grant certiorari to restore the proper limits of the instrumentalities doctrine and confirm that

the local use of an automobile, standing alone, is not

enough to satisfy Article I.

5

ARGUMENT

I. THE CONSTITUTION LIMITS CONGRESS’S

POWER TO REGULATE PURELY LOCAL,

NONECONOMIC ACTIVITY.

A.

The Necessary and Proper and Commerce Clauses reach intrastate activities only to effectuate regulation

of interstate exchange or trade.

The Necessary and Proper Clause does not enlarge

the Constitution’s scheme of “few and defined” federal

powers. The Federalist No. 45, at 292. Rather, it provides a “limitation on the means which may be used”

to carry into execution an enumerated power. Gibbons

v. Ogden, 22 U.S. (9 Wheat.) 1, 187 (1824) (emphasis

added). Such means “shall” be both “necessary” and

“proper.”

By its plain terms, the Clause is “a declaration, for

the removal of all uncertainty, that the means of carrying into execution those [powers] otherwise granted

are included in the grant.” Kinsella v. United States ex

rel. Singleton, 361 U.S. 234, 247 (1960) (alteration in

original) (quoting VI Writings of James Madison 383

(Gaillard Hunt ed. 1903)). The Clause preserves the

Constitution’s scheme of limited federal powers by cabining Congress’s lawmaking power to appropriate

means directed at carrying “some other identifiable

constitutional power” into execution. Gary Lawson &

Patricia B. Granger, The “Proper” Scope of Federal

Power: A Jurisdictional Interpretation of the Sweeping

Clause, 43 Duke L.J. 267, 274–75 (1993).

The Court very recently reaffirmed this fundamental principle in Landor. There, it stated that the Necessary and Proper Clause “authorizes Congress to employ ‘necessary and proper’ means for ‘carrying into

6

Execution’ its other enumerated powers.” 2026 WL

1791277, at *9 (quoting U.S. Const. art. I, § 8, cl. 18).

That is, “the Clause allows Congress to enact laws ‘incidental to those powers which are expressly given.’”

Id. (quoting McCulloch, 17 U.S. at 411).

The enumerated power at issue in Landor was the

Spending Clause power, but the principle applies with

equal force to Congress’s Commerce Clause power. The

Necessary and Proper Clause gives Congress power

over intrastate matters only to effectuate a regulation

of interstate trade, exchange, intercourse, and transportation.

1. The original meaning of “necessary and proper”

at the Founding embraced means that were closely

tethered to an enumerated power and weren’t otherwise prohibited by the Constitution or inconsistent

with its letter and spirit. See Printz v. United States,

521 U.S. 898, 923–24 (1997); Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 326 (1816); see also Zivotovsky ex rel. Zivotovsky v. Kerry, 576 U.S. 1, 47

(2015) (Thomas, J., concurring in part).

Contemporary sources illustrate the limited reach of

the language used in the Clause. Dictionaries defined

“necessary” to include what was “needful” or “requisite,” along with what was strictly indispensable. See

Randy E. Barnett, Necessary and Proper, 44 UCLA L.

Rev. 745, 751–60 (1997). And Founding-era legal usage treated “proper” as marking what belongs to a particular office, authority, or governmental department.

See Lawson & Granger, supra, at 291–97. Thus, a law

could be useful, convenient, or closely related to a federal end and still fall outside Congress’s proper authority if, for example, it invaded the reserved province of the States or the retained rights of the people.

7

See id. at 297; Barnett, Necessary and Proper, supra,

at 772–77.

Even ardent champions of broad federal power conceded the limitations of “necessary and proper.” While

defending the constitutionality of the First Bank of the

United States, Alexander Hamilton accepted that the

Clause’s reach turned on “[t]he relation between the

measure and the end; between the nature of the mean

employed towards the execution of a power and the object of that power.” Alexander Hamilton, Final Version

of an Opinion on the Constitutionality of an Act to Establish a Bank [23 February 1791], in 8 The Papers of

Alexander Hamilton 97 (Harold C. Syrett ed., 1965).

Chief Justice Marshall likewise noted in McCulloch

both the required connection between means and enumerated ends and the Constitution’s limited allocation

of authority: Congress can select means “plainly

adapted” to an end “within the scope of the constitution.” 17 U.S. at 421. But it may not, “under the pretext

of executing its powers,” pass laws for “objects not entrusted to the government.” Id., at 423.

2. The Commerce Clause is not a National Problems Clause. As originally understood, “the Commerce

Clause authorizes Congress only ‘to regulate the buying and selling of goods and services trafficked across

state lines.’” United States v. Hemani, 608 U.S. — ,

2026 WL 1751710, at *13 (June 18, 2026) (Thomas, J.,

concurring) (quoting Gonzales v. Raich, 545 U.S. 1, 58

(2005) (Thomas, J., dissenting)); see also United States

v. Lopez, 514 U.S. 549, 585–89 (1995) (Thomas, J., concurring).

Founding-era dictionary definitions of “commerce”

illustrate that the term’s reach was limited to trade,

exchange,

commercial

intercourse,

and

8

transportation. See, e.g., 1 Samuel Johnson, A Dictionary of the English Language (6th ed. 1785) (defining

“commerce” as “[i]ntercourse; exchange of one thing for

another; interchange of any thing; trade; traffick

[sic]”); Nathan Bailey, An Universal Etymological English Dictionary (26th ed. 1789) (“trade or traffick

[sic]”); Thomas Sheridan, A Complete Dictionary of the

English Language 585–86 (6th ed. 1796) (“[e]xchange

of one thing for another; trade, traffick [sic]”). Samuel

Johnson defined “intercourse” as “1. Commerce; exchange” and “2. Communication: followed by with.” 1

Johnson, supra.

“Commerce” thus was understood as a discrete activity; trade or transportation of things was separate

from the production of articles later traded. See Randy

E. Barnett, Jack Balkin’s Interaction Theory of “Commerce”, 2012 U. Ill. L. Rev. 623, 623 (2012); see also

The Federalist No. 11, at 89 (Hamilton) (describing interstate commerce as “trade” advanced by the “interchange” of state productions).

Debates during the drafting of the Constitution confirm that “commerce” meant the discrete act of trade

and transportation. For example, Madison proposed to

the Philadelphia Convention that Congress have the

power “[t]o establish public institutions, rewards, and

immunities for the promotion of agriculture, commerce, trades, and manufactures,” treating “commerce” as a distinct activity from the others. James

Madison, Notes of Debates in the Federal Convention of

1787, at 478 (Ohio Univ. Press 1966).

The same was true during ratification. In defending

the Constitution’s taxing power, Hamilton made the

same distinction: he described “commerce” as “nearly

allied” to “the mechanic and manufacturing arts,” not

as encompassing them, and explained that those arts

9

merely “furnish the materials of mercantile enterprise

and industry.” The Federalist No. 35, at 214, 216.

Usage of “commerce” at state ratification conventions tells the same story. See 2 The Debates in the Several State Conventions on the Adoption of the Federal

Constitution 57–58 (Jonathan Elliot ed., 2d ed. 1836)

(statement of Thomas Dawes) (distinguishing “agriculture, commerce, and manufactures” and describing

commerce as “our own domestic traffic that passes

from state to state”); id. at 17, 20 (statement of William

Davie) (distinguishing “commerce, agriculture, and

manufactures” and explaining that commerce supplied

markets for planter’s produce); see generally Randy E.

Barnett, The Original Meaning of the Commerce

Clause, 68 U. Chi. L. Rev. 101 (2001) (surveying every

use of the word “commerce” in the Convention, the ratification debates, and The Federalist Papers); Randy E.

Barnett, New Evidence of the Original Meaning of the

Commerce Clause, 55 U. Ark. L. Rev. 847 (2003) (surveying every use of the word “commerce” in the Pennsylvania Gazette from 1728 to 1800).

The words surrounding “commerce” in the Clause

further restrict the scope of Congress’s power. “Among

the several States” limited the power to exchange,

transportation, or intercourse between States and left

internal trade within a State beyond Congress’s direct

control. So said Hamilton. See The Federalist No. 23,

at 153 (describing the object of the commerce power as

“the regulation of commerce with other nations and between the States”). So too said James Madison. See

The Federalist No. 42, at 267 (referring to the power

“to regulate the trade between State and State”). The

Clause thus gave Congress no direct dominion over

commerce—however broadly or narrowly it is

10

defined—that is wholly internal to a State, much less

over purely local, noneconomic conduct.

This Court’s early cases recognized as much. In Gibbons, Chief Justice Marshall explained that the specification of commerce “among the several States” in the

Clause left outside of Congress’s power “[t]he completely internal commerce of a State,” which “may be

considered as reserved for the State itself.” 22 U.S. at

194–95. In other words, the Clause itself gives Congress “no power of regulation nor … direct control”

over “internal commerce or domestic trade.” The License Tax Cases, 72 U.S. (5 Wall.) 462, 470–71 (1867).

3. Congress’s authority under the Commerce

Clause to reach wholly intrastate activity must therefore be limited to those means that are “necessary and

proper” for carrying into execution its enumerated

power over interstate commerce—that is, only insofar

as doing so is necessary and proper to effectuate regulation of “the [interstate] trade or transportation of

things or persons.” Barnett, Jack Balkin’s Interaction

Theory of “Commerce”, supra, at 623. A legislative

“act” that reaches further—regulating local activity

without the required connection to interstate commerce—falls beyond Congress’s reach and is not a

“proper” law. See McCulloch, 17 U.S. at 423 (“[S]hould

congress, under the pretext of executing its powers,

pass laws for the accomplishment of objects not intrusted [sic] to the government; it would become the

painful duty of this tribunal … to say, that such an act

was not the law of the land.”).

11

B.

Commerce Clause precedents do not

permit Congress to regulate intrastate activity merely because an automobile is used.

1. Courts may, of course, adopt implementing doctrines to effectuate the original meaning of the Constitution’s text. See Vidal v. Elster, 602 U.S. 289, 324

(2024) (Barrett, J., concurring in part) (“In the course

of applying broadly worded text … , courts must inevitably articulate principles to resolve individual

cases.”); Stephen E. Sachs, Originalism: Standard and

Procedure, 135 Harv. L. Rev. 777, 780 (2022); Randy

E. Barnett, Interpretation and Construction, 34 Harv.

J.L. & Pub. Pol’y 65, 69 (2011). The Court has done so

for the Necessary and Proper Clause’s effectuation of

the Commerce power. In particular, the Court has recognized three “categories of activity” as appropriate

subjects of regulation under the Commerce Clause.

Taylor v. United States, 579 U.S. 301, 306 (2016) (quoting Lopez, 514 U.S. at 558–59).

First, Congress may regulate “activities having a

substantial relation to interstate commerce, … i.e.,

those activities that substantially affect interstate

commerce.” Id., at 306.

Second, Congress may regulate “the use of the channels of interstate commerce,” Lopez, 514 U.S. at 558—

the “interstate transportation routes through which

persons and goods move,” United States v. Morrison,

529 U.S. 598, 613 n.5 (2000) (quoting United States v.

Lankford, 196 F.3d 563 (5th Cir. 1999)).

Third—and critical here—the Court has recognized

that Congress may regulate “the instrumentalities of

interstate commerce.” Lopez, 514 U.S. at 558. Those

include “persons … in interstate commerce.” Id.; see

12

Caminetti v. United States, 242 U.S. 470, 491 (1917)

(upholding statute that prohibited transporting

women in interstate commerce for purposes of debauchery or prostitution). They also include “things in

interstate commerce.” Lopez, 514 U.S. at 558; see Perez

v. United States, 402 U.S. 146, 150 (1971) (airplanes);

Japan Line, Ltd. v. Los Angeles County, 441 U.S. 434,

445–46 (1979) (shipping containers).

The theory behind the instrumentalities category is

straightforward: regulation of instrumentalities effectuates the regulation of “the [interstate] trade or

transportation of things or persons,” Barnett, Jack

Balkin’s Interaction Theory of “Commerce”, supra, at

623, when it “save[s] the act of interstate commerce

from prevention or interruption, or … make[s] that act

more secure, more reliable, or more efficient,” The Second Emps.’ Liab. Cases, 223 U.S. 1, 48 (1912); see also

The Shreveport Rate Cases, 234 U.S. 342, 353 (1914)

(Congress can “take all measures necessary [and] appropriate” to “foster and protect interstate commerce.”). Congress can therefore regulate to “protect

the instrumentalities of interstate commerce … even

though the threat may come only from intrastate activities.” Pierce County v. Guillen, 537 U.S. 129, 147

(2003) (quoting Lopez, 514 U.S. at 558); see also Perez,

402 U.S. at 150 (noting Congress’s power to regulate

for the “protection of the instrumentalities of interstate commerce”).

2. “When determining how broadly or narrowly to

read” precedents like these, or “whether to extend,

limit, or narrow [those] precedent[s],” the Court should

“consider how the precedent squares with the Constitution’s text and history.” United States v. Rahimi, 602

U.S. 680, 730 (2024) (Kavanaugh, J., concurring); see

also Hester v. United States, 586 U.S. 1104, 1105

13

(2019) (Alito, J., concurring in the denial of certiorari);

Kelo v. City of New London, 545 U.S. 469, 523 (2005)

(Thomas, J., dissenting). Any judge-made implementing doctrines for the Commerce power must, of course,

be faithful to the original ends, objects, or purposes of

the Commerce Clause as effectuated through the Necessary and Proper Clause.

Viewed in light of the original public meaning of the

Commerce and Necessary and Proper Clauses, the

Court’s precedents reveal important limitations on

Congress’s power over instrumentalities of interstate

commerce. Two are relevant here. First, instrumentality status turns on actual use of an item, not its categorical capability or potential. And second, the instrumentality must be involved in economic activity. These

principles ensure there is a sufficient nexus between

the instrumentality and “the [interstate] trade or

transportation of things or persons” for regulation consistent with the Necessary and Proper Clause. Barnett, Jack Balkin’s Interaction Theory of “Commerce”,

supra, at 623.

a. The first limitation concerns the level at which

a court identifies an instrumentality. The operative

word supplies the rule of analysis. From the founding

onward, an “instrumentality” has been understood as

the “agency of any thing as means to an end.” 1 Samuel

Johnson, A Dictionary of the English Language (1773)

(defining “instrumentality”); accord Noah Webster, An

American Dictionary of the English Language (1828)

(“[s]ubordinate or auxiliary agency; agency of any

thing as means to an end”). A thing furnishes that

agency only while it is actually employed toward the

relevant end. So whether an object is an “instrumentality of interstate commerce” depends on its employment as a means of the interstate trade or

14

transportation of persons or things, assessed at the

level of that actual use.

This distinguishes the instrumentalities inquiry

from the substantial-effects inquiry. Although the

Court has long identified “classes of activities” that, in

the aggregate, substantially affect interstate commerce, see Perez, 402 U.S. at 151–53 (collecting “class

of activities” effects cases), it has never held that an

object qualifies as an instrumentality by virtue of its

membership in a category of objects, apart from any

showing that the object is used as a means of interstate

commerce, see Hemani, 2026 WL 1751710, at *13

(Thomas, J. concurring) (“Nor does [18 U.S.C. § 927(g)]

‘regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce’ because it requires no showing that the [firearm] possession in question poses any risk to interstate

buying, selling, shipping, or transportation.” (emphasis added)); cf. Raich, 545 U.S. at 73 (Thomas, J., dissenting) (“There is no reason why, when Congress exceeds the scope of its commerce power, courts may not

invalidate Congress’ overreaching on a case-by-case

basis.”).

Indeed, this Court has required exactly such a usespecific inquiry. In The Employers’ Liability Cases, 207

U.S. 463 (1908), the Court considered a statute that

made common carriers engaged in interstate commerce liable to “any” employee injured by the negligence of “any” officer, agent, or employee. Id. at 463,

498. The Court concluded that the statute imposed liability on those who were “engaged in interstate commerce, and [was] not confined solely to regulating the

interstate commerce business which such persons may

do, [sic]—that is, it regulate[d] the persons because

they engage[d] in interstate commerce, and [did] not

15

alone regulate the business of interstate commerce.”

Id. at 497. That breadth proved fatal. Because the statute “impos[ed] liability upon them in favor of any of

their employees, without qualification or restriction as

to the business in which the carriers or their employees may be engaged at the time of the injury,” the statute “of necessity include[d] subjects wholly outside of

the power of Congress to regulate commerce.” Id. at

498. Liability turned on the carrier’s actual employment at the time, and a statute that swept in carriers

without regard to that employment reached past the

commerce power.

The Court’s instrumentalities decisions confirm the

same use-based test, for in each the Court tied instrumentality status to the object’s employment in interstate commerce. See Pensacola Tel. Co. v. W. Union

Tel. Co., 96 U.S. (6 Otto) 1, 9–11 (1878) (describing interstate telegraph lines as necessary instrumentalities

of interstate commerce); Overstreet v. N. Shore Corp.,

318 U.S. 125, 129 (1943) (describing roads and bridges

as instrumentalities “[i]f they are used by persons and

goods passing between the various States”); The

Shreveport Rate Cases, 234 U.S. at 354 (describing an

“interstate [rail] carrier” as “an instrument of interstate commerce”).

The vessel cases make the test explicit. In The Daniel Ball, 77 U.S. (10 Wall.) 557 (1870), a steamer carrying goods on a river wholly within Michigan was

“employed as an instrument of that commerce” because, and only so far as, she was “employed in transporting goods destined for other States, or goods

brought from without the limits of Michigan.” Id. at

565. Her employment in moving interstate goods is

what made her an instrument of that commerce; the

same steamboat carrying only intrastate goods would

16

have fallen outside the description. The Court relied

on this definition this term in a case interpreting “engaged in commerce.” Flowers Foods, Inc. v. Brock, 146

S. Ct. 1358, 1364 (2026) (noting that a vessel “employed in transporting goods destined for other States”

is thereby “engaged in commerce between the States”

(quoting The Daniel Ball, 77 U.S. (10 Wall.) at 565)).

These authorities describe whole facilities—telegraph lines, interstate railroads, vessels on the navigable waters—as instrumentalities because such facilities operate within the system of interstate transportation as a matter of their ordinary employment. That

description reflects the actual function of the facilities

and supplies no warrant for treating an entire category of objects as instrumentalities without regard to

their ordinary use.

The aircraft example points the same way. Perez offered the destruction-of-aircraft statute as an illustration of protecting an instrumentality of interstate commerce, see 402 U.S. at 150, and that statute reaches

“any civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce,” 18 U.S.C.

§ 32(a)(1). The illustration keys instrumentality status

to aircraft employed in air commerce. To read Perez as

declaring every civil aircraft an instrumentality whatever its use would stretch the Court’s reference to “aircraft” past the scope of the statute it invoked as an example. And the Court’s very next example was that of

“persons or things in commerce, as, for example, thefts

from interstate shipments.” 402 U.S. at 150.

b. This Court’s cases also impose a nexus requirement. “[T]hus far in our Nation’s history [the Court’s]

cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic

in nature,” Morrison, 529 U.S. at 613, or the regulation

17

is “a necessary part of a more general regulation of interstate commerce,” Raich, 541 U.S. at 37 (Scalia, J.,

concurring); see also Lopez, 514 U.S. at 561 (noting

that a regulation was not “an essential part of a larger

regulation of economic activity”). That is true in both

the substantial-effects and instrumentalities contexts.

Lopez and Morrison, both substantial effects cases,

suggest that the proper constitutional default is that

purely intrastate, noneconomic activity is beyond the

commerce power because such activity is too “remote”

from the regulation of interstate commerce. Cf. United

States v. Dewitt 76 U.S. (9 Wall.) 41, 44 (1869) (“This

consequence is too remote and too uncertain to warrant us in saying that the prohibition is an appropriate

and plainly adapted means for carrying into execution

the power of laying and collecting taxes.”).

The canonical statement of this constitutional principle is NLRB v. Jones & Laughlin Steel Corp., 301

U.S. 1 (1937):

Undoubtedly the scope of this power must be

considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of

our complex society, would effectually obliterate

the distinction between what is national and

what is local and create a completely centralized

government.

Id. at 37. The Lopez-Morrison doctrine distinguishing

economic from noneconomic activity provides a judicially administrable means of implementing this general principle.

Applying this distinction, Lopez and Morrison concluded that Congress could not reach certain instances

18

of purely intrastate, noneconomic activity—gun possession in school zones and gender-motivated violence—because even after aggregating all instances of

each activity, the connection to interstate commerce

was too “tenuous[]” to justify the regulations as proper

means to effectuate the Commerce power. Morrison,

529 U.S. at 613 (quoting Lopez, 514 U.S. at 564).

That neither activity could be understood as “‘commerce’ or any sort of economic enterprise, however

broadly one might define those terms,” was central to

the Court’s holdings. Lopez, 514 U.S. at 561; see Morrison, 529 U.S. at 615–16. Nor could the regulated activities be described as “essential part[s] of a larger

regulation of economic activity.” Lopez, 514 U.S. at

561. It would be more than passing strange if those

foundational precedents applied only to crimes committed on foot.

These limitations on the regulation of purely intrastate, noneconomic activity are not confined to the effects category. In fact, they are of a piece with the

Court’s instrumentalities precedents; in the few cases

where the Court has upheld Congress’s power to regulate intrastate activity via an instrumentality, the regulated activity was economic in nature.

In Southern Railway Co. v. United States, 222 U.S.

20 (1911), for example, the Court upheld a railcarsafety regulation that covered the operation of railcars

on interstate railways regardless whether they carried

interstate or intrastate “traffic,” reasoning that such

railcars were used “interchangeably” to carry both

types of traffic and were “frequently commingled in the

same train.” Id. at 26–27. The railcars at issue were

engaged in the transportation of goods as part of a

commercial enterprise—quintessentially economic activity.

19

3. All of that boils down to this: Congress may regulate purely intrastate conduct involving an instrumentality only if doing so is a “necessary and proper

means to achieve the legitimate objective of regulating

interstate commerce.” Barnett, The Original Meaning

of the Commerce Clause, supra, at 127. The constitutional inquiry cannot look only at a class of objects in

the aggregate apart from how the object is used and

the connection of that use to the regulation of interstate commerce. Nor can it allow regulation of an object involved in exclusively noneconomic activity unless that regulation is an “a necessary part of a more

general regulation of interstate commerce.” Raich, 541

U.S. at 37 (Scalia, J., concurring). To permit as much

would defy fundamental limitations on the scope of

federal power—that a regulation must be necessary

and proper to effectuate congressional control of interstate trade or transportation of things or persons.

II. THE ELEVENTH CIRCUIT’S RULE THAT

AUTOMOBILES ARE PER SE INSTRUMENTALITIES

IMPERMISSIBLY

EXTENDS

FEDERAL POWER.

Below, the Eleventh Circuit applied its rule that “an

automobile is per se an instrumentality of interstate

commerce, even if it is used purely intrastate.” Brown,

2025 WL 3771990, at *2 (relying on Bryan, 159 F.4th

at 1293–95). Under that rule, the government can satisfy 18 U.S.C. § 1201(a)’s jurisdictional element if the

“indictment allege[s], and trial evidence establishe[s],

that [a defendant] used a car … in the commission of”

the kidnapping offense. Id. That rule defies the boundaries set by the Necessary and Proper and Commerce

Clauses.

To start, the Eleventh Circuit’s rule establishes automobiles’ instrumentality status on a category-wide

20

basis and without care for whether the actual object at

issue bears a sufficient connection to interstate commerce. The court reached that sweeping conclusion by

leaning on dicta addressing objects like airplanes,

boats, and shipping containers. See Bryan, 159 F.4th

at 1295–96. But none of the cited cases held that the

Commerce Clause invites a categorical inquiry focused

on objects devoid of sufficient connection to interstate

commerce. And only by squinting at that dicta can one

find support for treating those objects categorically as

“instrumentalities.” See Perez, 402 U.S. at 150 (aircraft); Gibbons, 22 U.S. at 189–90 (vessels); Japan

Line, 441 U.S. at 445–46 (shipping containers). That is

no way to read the Constitution or this Court’s cases.

Worse still, the Eleventh Circuit’s rule permits Congress to regulate the purely intrastate use of an automobile—untethered to any economic activity. See

Bryan, 159 F.4th at 1295–96. That reasoning has no

logical stopping point. If an automobile is always an

instrumentality, then Congress may regulate virtually

any activity that involves the use of a car.

The Court has repeatedly warned that such reasoning violates constitutional “first principles” because it

“obliterate[s] the distinction between what is national

and what is local”: “The powers delegated … to the federal government are few and defined. Those which are

to remain in the State governments are numerous and

indefinite.” Lopez, 514 U.S. at 552, 557 (first quoting

Jones & Laughlin Steel, 301 U.S. at 37; then quoting

The Federalist No. 45, at 292–93).

In Morrison, for instance, the Court rejected reasoning that sought “to follow the but-for causal chain from

the initial occurrence of violent crime … to every attenuated effect upon interstate commerce,” warning

that doing so “would allow Congress to regulate any

21

crime as long as the nationwide, aggregated impact of

that crime has substantial effects on … transit.” 529

U.S. at 615.

Indeed, by the Eleventh Circuit’s logic, Congress

could go even further. It could set speed limits on local

(or even private) roads, establish licensing rules for local drivers, regulate the length and process of school

drop-off lines, or dictate when and how residential

streets must be plowed after a snowstorm—all because

those activities involve the use of automobiles.

The Eleventh Circuit’s rule thus invites regulating

nothing short of that “which is completely internal,

which is carried on between man and man in a State,

or between different parts of the same State, and

which does not extend to or affect other States.” Gibbons, 22 U.S. at 194.

All the more troubling, the Eleventh Circuit’s rule is

not an outlier. The Third, Fourth, Sixth, Seventh, and

Ninth Circuits have also deemed automobiles per se

instrumentalities. See United States v. Bishop, 66 F.3d

569, 588 (3d Cir. 1995); United States v. Cobb, 144 F.3d

319, 322 (4th Cir. 1998); United States v. Windham, 53

F.4th 1006, 1013 (6th Cir. 2022); United States v. Protho, 41 F.4th 812, 828–29 (7th Cir. 2022); United

States v. Oliver, 60 F.3d 547, 550 (9th Cir. 1995). The

Eleventh Circuit’s rule thus reflects the circuits’ troubling trend toward an instrumentalities doctrine untethered from the Commerce and Necessary and

Proper Clauses’ original meaning, this Court’s precedents, and common sense.

Put simply, the Commerce and Necessary and

Proper Clauses permit Congress to reach intrastate activity only insofar as it is “necessary … for carrying

into Execution,” U.S. Const. art. I, § 8, cl. 18—or

22

effectuate—the regulation of the interstate trade or

transportation of things or persons. The Eleventh Circuit erred by treating every use of an automobile as

federally regulable without demanding an adequate

connection to interstate commerce.

In Landor, the Court reaffirmed the fundamental

principle that laws must be necessary and proper to

carrying into execution an enumerated power; this

case presents a ripe opportunity for the Court to apply

this principle in the context of the Commerce Clause

by confirming that the mere local use of an automobile,

without more, is insufficient to justify the exercise of

federal power. The Court should grant certiorari and

seize that opportunity.

23

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

Peter A. Bruland

Jacob Steinberg-Otter

Seumas G. Macneil

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

Collin P. Wedel

Counsel of Record

SIDLEY AUSTIN LLP

350 South Grand Avenue

Los Angeles, CA 90071

(213) 896-6000

cwedel@sidley.com

Robert D. Capodilupo

SIDLEY AUSTIN LLP

60 State Street

36th Floor

Boston, MA 02109

(617) 223-0300

Counsel for Amicus Curiae

July 2, 2026